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Charleston School of Law
Lund, Paul E.

Summer 09

Not tested on history of rules
Use policy behind the rules to support answers
Don’t have to know case specifics but they are helpful to compare and contrast in questions

Chapter 1
I. Focus On Federal Rules
A. Adopted in 42 states and in Puerto Rico.
B. But some variations in each state.
C. Jurisdictions that have not adopted: California; D.C.; Georgia; Illinois; Kansas; Massachusetts; Missouri; New York; Virgin Islands; Virginia.
II. History Of Federal Rules
A. Adopted in 1975.
B. Before then, mostly common law rules, with scattered statutes.
C. Federal Rules largely adopted common law, with some important variations.
III. Steps In Rule Adoption
A. Advisory Committee (judges, attorneys, professors, etc.).
B. Supreme Court.
C. Congress.
IV. Applicability Of Federal Rules
A. Apply only at trial.
B. Apply in both criminal and civil cases, with occasional variations.
C. Most rules apply equally to both jury trials and bench trials.
V. Why Do We Need Evidence Rules At All, Or Such Complicated Rules?
A. Job security for lawyers?
B. To control scope and duration of trials.
C. To minimize danger that jury will be prejudiced by certain types of evidence.
D. To advance certain substantive social policies that have nothing to do with the truth-seeking function.
E. To ensure accurate fact-finding.
F. Mistrust of juries?
VI. “Puzzling Evidence”
A. Importance of getting a fundamental grip on this stuff now.
B. Rule 606(b):Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury’s attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror’s affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying
C. So juror cannot testify about anything that went on during deliberations or what may have influenced his decision but there are exceptions
VII. Four Rationales For Tanner Ruling
A. Allows jurors to deliberate without fear of oversight.
B. Prevents jurors from being harassed by lawyers.
C. Enhances finality of verdicts.
D. Helps preserve the community’s trust in the legitimacy of verdicts.
VIII. Justice O’Connor (P. 11)
A. “There is little doubt that post-verdict investigation into juror misconduct would in some instances lead to the invalidation of verdicts reached after irresponsible or improper juror behavior. It is not at all clear, however, that the jury system could survive such efforts to perfect it.”

I. Rule 402: Relevant Evidence Generally Admissible, Irrelevant Evidence Inadmissible
A. “All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.”
B. What Is Role Of Rule 402?
i. Foundation rule (the cornerstone) for our entire system of evidence.
ii. If evidence is relevant, it is admissible, subject to some other exception; if it is not relevant, it is not admissible, period.
iii. Must be prepared to argue why the evidence is relevant
iv. Also, tells us that judge cannot exclude evidence based on whim.
II. Rule 401: Definition of Relevant Evidence
A. “‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
B. Two Parts To This Definition:
i. First, the evidence must relate to a “fact that is of consequence to the determination of the action.” (Materiality.)
ii. Second, the evidence must tend to make the existence of that fact “more probable or less probable than it would be without the evidence.” (Logical relevance or probativeness.)
C. Evidence is excluded as irrelevant if it fails to meet either one of these requirements.
D. Notice that the Federal Rules do not make a distinction between relevancy and materiality—both are part of the definition. The current definition of relevancy subsumes the older concept of materiality.
E. Three Questions To Ask
i. What fact is the evidence being used to prove?
ii. Is that proposition provable in the case?
iii. Does the evidence help in proving or disproving the proposition?
F. Relevance cannot be determined in the abstract
G. Relevancy exists only as a relation between an item of evidence and a proposition sought to be proved.
i. E.g., the example given at pages 18 and 19 regarding testimony as to the decedent’s salary
ii. In the civil suit of wrongful death awarding damages, the salary of the victim is relevant
III. Logical Relevance (Probative Value)
A. The rule provides no test for this.
B. Case law has said that this must be determined based on “logic and general experience.”
C. Relevance ≠ Conclusive Proof
i. Evidence need not furnish conclusive proof of a point to be relevant.
ii. It’s not a valid objection that a particular inference “does not necessarily prove or follow” from the evidence.
iii. Remember that the rule says any tendency to make it seem more or less probable
iv. Very liberal rule—in favor of the admission of evidence
D. Relevancy ≠ Sufficiency
i. Evidence may be relevant although it is not, standing alone, sufficient.
ii. “A brick is not a wall.” But as long as that brick helps to build that wall of proof it is relevant
E. Problems For Probativeness (Logical Relevance)
i. “Show me the body”à brick in the wall, passes the test—may be relevant if inferences made from the question why would she shout this instead of saying her husband wasn’t guilty
ii. Brotherhoodà relevant because of the credibility of the defendant’s witness if witness and defendant were members of a secret organization and may have lied during the trial
iii. Polygraph Consentà general rule is lie detector tests are not admissible but there are exceptions: may be relevant in that it is used to show that a guilty party would not have freely offered to take the polygraph test: probably does satisfy the relevance test of ANY tendency
IV. Materiality
A. Usually requires us to look to the substantive law and the issues raised by the pleadings.
B. The fact need not be an ultimate fact; it may be an evidentiary fact.
C. The fact to which the evidence goes may be a link in a chain of proof.
D. Problems For Materiality
i. Knowledgeà irrelevant because of strict liability for being a convicted felon: doesn’t matter whether she knew she was a convicted felon and only matters that she was an actual convicted felon
ii. Voluntary Intoxicationà
E. United States v. James
i. Defendant is charged with aiding and abetting manslaughter by giving her daughter the gun she used to kill the decedent
ii. Supposedly the decedent had boasted about his many acts of violence
iii. In self defense defenses, the only thing that matters is whether the victims at the time had

ly admissible because “the fact and cause of death are always relevant in a murder case.”
iii. Said that two autopsy photos that showed the victim’s skull after the brain had been removed “had little tendency to establish any disputed issue in the case.”
iv. But held that admission of these photos was harmless error and didn’t prejudice the jury against the defendant and affect the verdict
D. Steps To Limit Prejudice
i. Voir dire questions aimed at excluding particularly sensitive jurors.
ii. Limits on size of photos.
iii. Limits on how long jurors are exposed to photos.
iv. Use of black-and-white photos only.
v. Cautionary instructions.
vi. Use of in limine motions: don’t wait until date of trial to deal with these documents, instead use pretrial motions to limit
IV. Must Evidence Go To A Disputed Fact For It To Be Relevant?
A. No, but Advisory Committee noted that “the availability of other means of proof” may be considered in conducting Rule 403 weighing test.
B. Bocharski: if evidence goes to an uncontested fact, “then a relevant exhibit’s probative value may be minimal” for purposes of Rule 403 analysisàfact that defendant has already stipulated to that fact may go into analysis of probative value weighing
V. Commonwealth v. Serge
A. Computer generated animation
B. Against using it: may impress the jury and leave them unable to distinguish that it is only one version of that happened
VI. 4-Step Inferences From Flight (Admission By Conduct)—don’t need to know
A. from defendant’s behavior to flight;
B. from flight to consciousness of guilt;
C. from consciousness of guilt to consciousness of guilt concerning crime charged;
D. from consciousness of guilt concerning crime charged to actual guilt.
VII. People v. Collins—Probability Evidence
A. Court did not generally disapprove of use of mathematical or statistical evidence in criminal courts.
B. That sort of evidence is used all the time; e.g., DNA evidence.
C. But court fears that math can be a “veritable sorcerer” and should not be permitted to “cast a spell” over trier of fact.
D. It may be particularly difficult both for jury and for opposing counsel to spot flaws in this type of evidence, so judges give it more scrutiny.
E. Defendants in this case matched the physical descriptions given by witness, but other than that there wasn’t much evidence linking them to crime
F. There was no evidence that the numbers used by the prosecutor were factual
VIII. Possible Types Of Protective Rulings:
A. Carving out unfairly prejudicial parts of exhibits or testimony; e.g., “cropping” photographs or “redacting” statements/documents.
B. Instructing witnesses to refrain from mentioning certain facts because court has deemed them inadmissible.
IX. Old Chief v. United States
A. Charge: being a convicted felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).
B. Prosecution wanted to introduce evidence of conviction for assault causing serious bodily injury, for which Old Chief was sentenced to five years’ imprisonment.